Meta did not infringe on the constitutional rights of a group dedicated to sharing information about vaccines, a divided federal appeals court has ruled.
Meta, which owns and operates Facebook, has, for years, been tagging posts from Children’s Health Defense (CHD), a nonprofit group chaired by Robert F. Kennedy Jr. The labels state that CHD is spreading false information about vaccines, wireless technology, and other issues. Meta has also removed CHD’s ability to fundraise on Facebook and stopped the group from buying advertisements.
CHD filed suit, arguing that Facebook, with assistance from its so-called fact-checking partners, is violating the U.S. Constitution’s First and Fifth Amendments, as well as federal laws against false promotions and conspiracy.
But a U.S. district judge in 2021 dismissed the case, finding that the organization did not provide evidence making its claims plausible, and a majority of the U.S. Court of Appeals for the Ninth Circuit on Aug. 9 upheld the ruling.
Meta’s actions against CHD stem from the company’s policies, and private companies are largely free to enforce their own policies, according to the court.
While CHD lawyers said Meta should be treated as a state actor because the firm allegedly partnered with government officials to tag the posts, that treatment can only come in exceptional circumstances and CHD did not meet the bar for those circumstances to apply, the majority stated.
Documents offered by CHD “indicate that Meta and the government have regularly disagreed about what policies to implement and how to enforce them,” Miller said. While the government did flag certain posts to Meta through a portal that Meta had created, the company is allowed to receive input from the government and then decide on its own whether to act against the posts, the judge said.
U.S. District Judge Edward Korman, sitting by designation, joined Miller.
U.S. Circuit Judge Daniel Collins partially dissented.
“The government expressed its specific interest in suppressing particular speech of particular speakers— including CHD and Kennedy—and Meta responded by underscoring the steps it had taken, and planned to take, to accomplish just that,” he wrote.
The actions happened as government officials openly threatened to limit or end immunity conferred on Meta and other large technology companies by a federal law, the dissent noted.
Meta did not respond to a request for comment.
CHD officials said they’re considering legal options in response to the split ruling. The group could ask the full appeals court to reconsider the case or appeal to the U.S. Supreme Court.
“The First Amendment, at this point, seems hollow,” Kim Mack Rosenberg, general counsel for CHD, said in a statement. “Often, the only speech ‘protected’ and heard is that which reinforces the prevailing narrative.”
